CIV/APN/65/2012
IN THE HIGH COURT OF LESOTHO
In the matter between:
SEFATE DEMOCRATIC CONGRESS
APPLICANT
AND
INDEPENDENT ELECTORAL COMMISSION
RESPONDENT
JUDGMENT
Coram
Date of Hearing
Date of Judgment
:
:
:
Hon. Moiloa AJ
15 April 2012
17 April 2012
Summary
Interpretation of statutes – Sections 24, 25, 26, 27, 29 and 196 of National
Assembly Elections Act 2012 – Political party failing to comply with Section 27 is
liable to be de-registered as a political party by Independent Electoral
Commission.
[1]
Applicant had been a registered political party in Lesotho since 16 May,
1994 until Respondent deregistered it on 9th January, 2012 on the ground
that Applicant no longer complied with Section 27, National Assembly
Electoral Act, 2011.
1
[2]
Applicant disputes that it no longer complies with any provision of National
Assembly Electoral Act, 1911.
In support of its contention, Applicant
annexed SDC 7 being, a copy bundle of its documents taken from inter alia,
its register books of members. In one such list appear at least 754 names. In
another list appear 2000 names. I will come back later to this matter of the
list of names appearing in SDC 7.
[3]
When the matter came before me on 28 March 2012 when counsel began to
argue the matter before me, there were several areas of dispute between the
parties including (a) whether Applicant kept an office at which notices
intended for it may be served or inspection of its records may be made
pursuant presumably to Section 24 (2) (a) and (b) of the Act, (b) whether
Respondent went to serve Applicant at its registered office at all but found
no such office, or (c) whether Respondent finally served Applicant by
delivering a notice pursuant to Section 27 (1) (c) at the home of Applicant’s
president at Upper Qeme, or (d) whether Respondent’s officers refused to
examine Applicant’s records (SDC 7) when Applicant’s president took them
to Respondent’s offices to prove that Applicant complied fully with the
requirements of National Assembly Electoral Act, 2011.
[4]
In an effort to expedite determination of the application I suggested to the
parties herein that the real dispute between them was whether or not
information contained in annexure SDC 7 made Applicant compliant with
Section 24, 25, 26, 27, 28 and 29 of National Assembly Electoral Act, 2011.
Both counsel agreed that I had identified the real dispute between the parties
correctly.
I suggested to them that in order to eliminate the other
preliminary disputes the parties could agree that Respondent go and examine
2
SDC 7 and make a call on whether SDC 7 complied with Sections 24, 25,
26, 27, 28 and 29 of National Assembly Electoral Act, 2011. Both parties
agreed to my suggestion. Accordingly on 28th March 2012, I made an order
to that effect and postponed the matter initially to 29 March 2012 for report
back and argument if need be. On 29th March 2012 when the matter was
called counsel reported that they needed more time and suggested that the
matter be postponed to 12th April 2012.
The matter was accordingly
postponed to 12th April 2012 pursuant to the parties’ request. On 12 April
2012, Respondent reported back that it had examined SDC 7 thoroughly and
satisfied itself that SDC 7 did not meet requirements of the Act. At the same
time, Mr. Mda handed into court an affidavit of Respondent setting out its
position. Mr. Molapo naturally wished to file an affidavit in response. The
matter was postponed to the next day to enable him to do so. He did.
[5]
On 13 April 2012 the matter was argued before me.
In addressing
arguments to me Advocate L.D. Molapo for the Applicant insisted that SDC
7 fully complied with requirements of Section 25 (1) (c) (iii). He urged me
to bear in mind the provisions of Section 196 (1) of the Act in assessing
compliance of SDC 7 with Section 25 (1) (c) (iii) of the Act. Section 196 (1)
of the Act which Mr. Molapo referred me to simply says that “compliance
with forms is not strict and the Commission [Respondent] may condone any
failure to comply with a form provided that the requirements of the form are
substantially complied with”.
[6]
I now proceed to examine SDC 7 and to test whether SDC 7 does in fact
“substantially” comply with the requirements of the Act. Section 24 (1) (f)
provides that a political party may register with the Commission if it has
3
paid-up membership of at least 500 electors. Section 24 (2) (b) of the Act
provides that the Commission may verify the paid-up membership of a
registered political party by checking, inter alia, the political party’s
membership register and its receipts register of its membership. Section 2
(1) of the Act defines an “elector” as a person who is registered as an elector
in relation to a particular constituency being a person whose name appears in
the elector’s register prepared for that constituency. In terms of Section 27
(1) (c) read with Section 24 (1) (f) of the Act, the Commission may cancel
the registration of a political party if it no longer has a paid-up membership
of 500 or more electors. Section 29 (3) read with Section 25 (1) (c) (iii) of
the Act provides that a registered political party shall provide its current
paid-up membership to the Commission annually by means of a declaration
signed by such members whose names appear on the party register. In terms
of Section 25 (2) (a) and (b) the declaration must include full names and
postal addresses and names of constituencies in respect of which signatories
are registered and the constituencies in which each such declarant is
registered. Section 24 (3) provides in peremptory terms that the Commission
shall not accept the application for registration of a political party if it is
satisfied that the political party concerned does not have a minimum of 500
paid-up members. The legislature demonstrates its seriousness about the
accuracy of these records and the stringent requirements placed on the
political parties by visiting any political party that is found to have provided
false information by banning it from registering with the Commission for a
period of five (5) years. I observe that these stringent requirements are
necessary because registered political parties are granted allocations of funds
from the Consolidated Fund. These are called “political party campaign
funds”. Also, political parties are given permission to solicit donations,
4
within limits, from members of the public within and outside Lesotho
pursuant to Section 70 of the Act. It therefore makes perfect sense that
political parties be held accountable by the Commission for these public
funds; otherwise political parties would become fertile ground for fraudsters.
[7]
In annexure SDC 7 papers, in the register therein reflecting 2600 names
there is no indication what year these names relate to nor constituencies in
relation to which these names are registered. There are no addresses, no
constituencies, no signatories; these are just names written in the Applicants’
book and it is not in reality discernable for what purposes. There is no
compliance with Section 2 (1) read with Section 24 (1) and (2) as well as
Section 25 (1), Section 25 (2) and Section 25 (3) of the Act. The declaration
forms on SDC 7 are not signed by anybody; there are in fact two (2) blank
forms. On 14 March 2012, Applicant filed another seven (7) completed
forms with signatories purporting to be in respect of 4 constituencies. These
later documents were not filed with annexure SDC 7 and there is no
indication that they are meant to be a part of SDC 7. But even if they were
meant to be part of SDC 7 (and I gave them that favourable interpretation)
they all fall far short of the requirements of Section 24 (1) and (2) and
Section 25 (1) (c) (iii), Section 25 (2) (a) in that there were only 7 of them
instead of 500 such forms.
[8]
In the circumstances disclosed above when the court scrutinized SDC 7 for
compliance with Section 24 and 25, the court has come to the conclusion
that Applicant has woefully failed to meet the requirements of the Section 24
and 25 of the National Assembly Electoral Act, 2011. Accordingly, I hold
that the Respondent was fully justified in removing Applicants from its
5
register of political parties to take part in the 2012 General Election on 26
May 2012.
[9]
I dismiss Applicant’s motion with costs to Respondent.
J.M. MOILOA
ACTING JUDGE
For Applicant
For Respondent
:
:
Adv. L.D. Molapo
Adv. Z. Mda K.C
6